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Defending against defamation claims

Defamation Defences

You may be able to deploy at least one of these arguments to demonstrate that you were not breaking the law when making your comments:

Truth

Honest opinion

Publication on matter of public interest

Absolute privilege

Innocent dissemination.

Truth

Often the most straightforward defence of defamation is to prove that the communication in question stated the truth. This will result in complete and absolute exoneration for the defendant.

Even if the defendant had malevolent intent when communicating the information, and regardless of whether it was in the public’s interest to make it known, the veracity of a claim will still provide a defence.

Often the most straightforward defence of defamation is to prove that the communication in question stated the truth.

The burden of proof rests solely upon the defendant. The information that causes the defamation, if damaging, will often be assumed to be untrue until the defendant proves otherwise.

An exception to using truth as a defence is if the information concerned spent criminal convictions, and the claimant can show that the defendant acted with pernicious intent against the claimant. This would contradict the justice system in its attempts to rehabilitate offenders, who after having taken their punishment still have the offence used against them.

Honest opinion

The Defamation Act 2013 has replaced The ‘honest opinion’ defence with the ‘fair comment’ defence. It can be used as a defence to defamation claims if the defendant can show that:

that the statement in question was an opinion;

that within the statement there was an apparent basis to the opinion; and

the statement is one that an honest person could have held.

A person claiming defamation can defeat this defence if they can demonstrate that the author of the statement complained about did not hold the opinion.

Publication on matter of public interest

It is a defence to a defamation claim if the defendant can show that their comments were made regarding a matter which is of public interest, and that they reasonably believed that publishing the statement was in the public interest.

This defence replaces ‘qualified privilege’ with the passing of the Defamation Act in 2013, and can be used by someone who finds themselves in a position in which it seems a necessity, either moral, legal, social, to impart certain information to another who has an interest.

This covers situations where the information is false but may not seem so at the time to the person accused of defamation, and that they had a duty to report it before going into the process of verifying the information.

Absolute privilege

Absolute privilege allows for complete freedom of speech with no fear of being sued for defamation, and is applied to certain, special situations no matter how malicious or false the information is.

All proceedings in parliament and courts in England and Wales are afforded absolute privilege, as is communication between a solicitor and client.

Innocent dissemination

Innocent dissemination is a defence that can be invoked by those who are accused of libel through the publication of the written word or images.

For this defence to be successful the defendant must prove that they had no knowledge that what they published was defamatory, had no reason to believe that the material would contain libel, and also that this lack of knowledge was not due to negligence on their part.

It is a defence generally only open to those who are peripherally associated with the publication of the libellous material; the author, editor or commercial publisher cannot use a defence of innocent dissemination.

It is a defence that may be used by someone such as Internet Service Providers (ISPs) who act as a medium through which potentially libellous material can be published. It also potentially extends to printers or distributors.

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